No end in sight in Polish-EU stand-off over democratic backsliding?

18 Aug 2017

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No end in sight in Polish-EU stand-off over democratic backsliding?

Poland once again made international headlines in July amid the latest attempt by the governing Law and Justice (PiS) party to expand political influence over the judiciary, through changing the procedures for appointments to the Supreme Court, the National Judicial Council and lower courts. Following more than a week of mass public protests against the three bills, the European Commission (EC) on 29 July launched an infringement procedure against Poland for violating EU laws. Despite President Andrzej Duda’s unexpected veto of two of the controversial bills, his ready approval of the third – which gives the justice minister expanded powers to appoint and dismiss lower court judges – triggered the formal legal complaint.

The government claims that the changes are needed to rid the judiciary of old, corrupt elites and improve efficiency, but critics are concerned by the expansion of executive powers over key judicial institutions. As both sides cement their positions, the situation is a timely reminder that PiS’s controversial domestic agenda will continue to pose a threat not only to stability at home, but also to broader EU unity.

Another stand-off likely

The infringement proceeding is likely to mark the start of another prolonged conflict between the EU and the PiS government. It comes in the wake of existing disputes over changes to the constitutional court, restrictions on the public media and Poland’s refusal to participate in the EU’s refugee relocation scheme. However, using a legal procedure to achieve a political goal – in this case, compelling the PiS to stop curtailing independent institutions – is likely to prove a double-edged sword against an opponent striving to score political points against the EU at every turn.

The infringement proceeding is likely to mark the start of another prolonged conflict between the EU and the PiS government.The alleged legal violation concerns discrimination on the basis of gender – specifically, the different retirement age of men and women. The EC has also called for an investigation of a possible violation of the right to fair trial, citing the arbitrary powers of the justice minister. Although a legal challenge gives the EC access to more concrete counter-measures, including fines, this competence is confined to specific legal violations, limiting its effectiveness with regard to the broader issue of rule of law and democratic backsliding.

The EC has affirmed its readiness to invoke the so-called ‘nuclear option’ – Article 7(1) of the Treaty, which could lead to sanctions and suspension of certain EU rights – if the proposed changes to the Supreme Court and National Judicial Council are implemented. Duda’s vetoes will postpone this outcome for at least a few months, and are likely to have brought a sigh of relief in Brussels. Both the EC and the Polish government know that the Article 7 procedure is not a viable option: Hungarian Prime Minister Viktor Orban stands firmly beside Poland, preventing the unanimity among member states that would be needed to trigger sanctions. The decision to resort to infringement procedures for violation of EU laws demonstrates that the EC knows its limitations and is looking for alternative means to induce compliance, after the rule of law procedure launched against Poland in 2016 proved wholly ineffective.

Deepening domestic rift

Domestically, the situation is likely to lead to a deepening rift between Duda and the government. Duda’s decision to block two of the bills reflects domestic political considerations more than anything else. Meanwhile, the veto of the bills affecting the Supreme Court and the National Judicial Council sends a clear signal to the rest of the PiS that the president is done sitting on the sidelines. Despite his approval of the third PiS bill, Duda’s more assertive stance does not sit well with PiS leader Jaroslaw Kaczynski, who is unlikely to let such blatant disloyalty go unpunished. The extent to which Duda will leverage his presidential powers- and how the party will respond- remains to be seen. However, a prolonged conflict between the executive branches would pose the greatest challenge so far to the dominance and stability of the PiS government.

Meanwhile, the vetoes will postpone the issue long enough for PiS to develop a new game plan, both domestically and vis-à-vis the EU. Abandoning the judicial overhaul is likely to be out of the question, given the level of support it commands among top PiS officials, including Kaczynski. For PiS, the changes to the judiciary, restrictions on the media, and a more assertive stance against Western neighbours and the EU are different ways to achieve the same goal, namely reshaping the country along more conservative, nationalist and traditionalist lines, and ridding it of the ‘liberal elites’ – including those in Brussels – that have corrupted and suppressed the country. Reactions from EU institutions feed into this rhetoric, which could render them counter-productive.

Further instability ahead

The EC has requested that the government respond to the infringement process within a month, but the legal process is likely to take much longer. Meanwhile, Duda is preparing his own proposals for reform of the Supreme Court and the National Judicial Council. Other PiS representatives have come out strongly against both Duda and the EC, and a sustained domestic campaign to strengthen support for the changes – and opposition to the EC – is likely to dominate domestic politics in the coming weeks. Despite broad agreement among political parties, legal experts and the public that the Polish judiciary is in need of reform, the kind of measured cross-party collaboration such a process requires seems increasingly remote in the current heated political environment.

For companies in Poland, the short-term impact of the situation is likely to be limited. PiS moderates have spent much of the last 18 months trying to mend fences with investors, following the party’s radical changes and numerous face-offs with European institutions. By and large, they appear to have been successful: the economy is booming, and business confidence – and investment – has continued to grow. However, while political or financial sanctions remain remote, the situation is a timely reminder to companies in Poland that PiS’s agenda is likely to continue to provoke strong reactions, increasing the scope for instability and unrest. In the longer-term, the erosion of judicial independence is likely to adversely affect the business environment and increase legal uncertainty. Meanwhile, the increasingly strained relations with the EU risk placing Poland on the sidelines as the bloc redefines its role, position and purpose in the coming years.